Misclassification

Work performed on Public Works Projects or Prevailing Wage Jobs are subject to various classifications that relate to the actual work performed.

For example when a worker is involved in general cleanup, that would be work of a Laborer Group 1; if a worker is using a Concrete Pile Cutter that would be a Laborer Group 3. A worker performing Cabinet Installation would be classified as a Carpenter and paid for the Prevailing Wage rate of a Carpenter. Each classification is paid at a rate set by the Department of Industrial Relations (DIR) for the area where the project is located.

The rates for various locations can be found at the links provided at the bottom of this page.

Work Classification Determines the Proper Rate

The classification of work performed is key to determining the proper rate a employee must be paid. Prevailing wage law requires that workers involved in public works projects be paid according to the rates set for their job classification. One of the most common violations of prevailing wage law is misclassification of workers.

For example an employer may classify a worker as a general Laborer instead of an Operator because a Laborer is paid at a lesser rate. However if the worker is operating a piece of equipment covered under the operator classification then the employee must be paid the Operator rate for the time spent as an operator.

Multiple Classifications in a Work Day

It is common for a worker to perform work covered by multiple classifications in a single day. A Cement Mason or Concrete Finisher may also spend time as an Iron Worker setting rebar or a Carpenter when building forms. This means that the hours worked that day must be tallied by classification and paid at the respective rate for each classification. If the employer insists on paying all hours at the lowest wage rate classification there could be a prevailing wage rate violation and back wages owed for prevailing wage work performed and not paid.

Prevailing Wage Classifications

The Director of the Department of Industrial Relations (DIR) defines and approves the scope of work for each classification. Employers must properly assign the scope of work for each worker on each project.

Common classifications include but are not limited to:

  • Laborer
  • Carpenter
  • Electrician
  • Iron Worker
  • Journeyman
  • Cement Mason
  • Fence Builder
  • Teamster
  • Painter
  • Landscaper
  • Boilermaker
  • Pile Driver
  • Drywall Installer
  • Hazardous Material
  • Asbestos Worker
  • Operating Engineer
  • Parking & Highway Improvement

A complete list of classifications is are available on the DIR web site for:

More Resources on Prevailing Wage Classification

Worker Status Classifications

There are several common ways that workers are misclassified as part of the Fair Labor Standards Act (FLSA), which is a federal law that applies to each state and determines the type of pay a worker should receive and how their pay should be calculated.

  • Exempt –not qualified to receive overtime pay based on an exception listed in the FLSA (executive, administrative, professional, computer and outside sales)
  • Non-exempt – required to receive pay for overtime (typically after 8 hours per day and/or 40 hours per week)
  • Independent Contractor – employers do not pay insurance, taxes and other employee benefit costs to independent contractors. The Borello test determines whether an individual is truly an independent contractor. If so, the individual is provided a 1099 and required to pay taxes directly. If not, the individual must be considered an employee. If the employer does not treat the individual as an employee, the individual is misclassified and may be owed damages for the non-payment of wages for hours worked.

Prevailing Wage Misclassification

Misclassification often results in lower pay for the worker and could also reduce benefits and protections. Exempt workers are not paid for all hours worked including not being paid overtime or the minimum wage. Independent contractors are generally not paid for all hours worked, not compensated with required benefits not covered by workers compensation, social security payments and so on.

Read more about work status classifications in the US Department of Labor publication Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA).

Determining the Proper Prevailing Wage Classification

Employers on public work projects must use the correct wage determination for each worker, based on a properly assigned classification. The DIR website shows all worker classifications for California Public Works projects.

If you think your work has been misclassified, contact Donahoo & Associates today for a confidential discussion and analysis of the correct rate you should be paid.

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